ZABAWA & RAGHEB

[2020] FCCA 2504

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABAWA & RAGHEB [2020] FCCA 2504

Catchwords:
FAMILY LAW – Parenting – interim hearing - children living with father and step-mother by consent – children self-place with mother – mother alleges child abuse – father alleges mother fabricating allegations and falsely persuading children they have been abused – children gave family consultant history of abuse by step-mother holding under water at a pool – contemporaneous police records investigating pool event reported that children did not support mother’s allegations of drowning or assault – police observed mother trying to put words in children’s mouths during interview – police and DCJ form adverse view of mother – children’s reason for self-placing discipline in father’s household – mother has not managed to get children to school – strong evidence of prescription drug abuse by mother – probabilities strongly support father’s case – children to live with father – supervised time only with mother – consequential orders.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CC(2), 60CC(3), 64B, 64C, 64D, 65AA, 69ZL, Part VII

Evidence Act 1995 (Cth), s.78

Cases cited:

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Eaby & Speelman (2015) FLC 93-654

SS v AH [2010] FamCAFC 13

Deiter & Deiter [2011] FamCAFC 82

M v M (1988) 166 CLR 69

B & B [1993] FamCA 143; (1993) FLC 92-357

Stott & Holgar and Anor [2017] FamCAFC 152

Re David [1997] FamCA 48, (1997) 22 Fam LR 489

Applicant: MS ZABAWA

Respondent: MR RAGHEB

File Number: SYC 7172 of 2014

Judgment of: Judge B Smith

Hearing date: 17 August 2020

Date of Last Submission: 17 August 2020

Delivered at: Sydney

Delivered on: 18 August 2020

REPRESENTATION

Solicitors for the Applicant: Legal Aid NSW Bankstown Family Law

Solicitors for the Respondent:	John Spence & Associates
Solicitors for the Independent Children's Lawyer:		Ark Law Lawyers

ORDERS

1. The matter be listed on 9 March 2021 at 9:30am for mention.

2. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

3. All prior parenting Orders be discharged.

4. The children X born in 2012 and Y born in 2013 shall live with the father.

5. The children shall spend no time with, and have no communication with, the mother other than in accordance with these Orders.

6. The father or his agent shall collect the children from school at the end of the school day on Wednesday, 19 August 2020:

   (a)Neither the mother nor her agents shall collect the children from school from this date; and

   (b)A copy of these Orders is to be provided to the children’s school.

7. Within 72 hours of the making of these Orders, the parties shall contact Region B Contact Centre at Suburb C for the purpose of completing an intake/ assessment and placing their names on the waitlist.

8. The children shall spend time with the mother at Region B Contact Centre at such times and dates as arranged by the Centre and the father shall bear the costs of this time.

   (a)For the purpose of this Order all visits shall occur during the weekends only.

   (b)For the purpose of this Order visits should occur every weekend, subject to the capacity of the Region B Contact Centre to facilitate weekly visits.

9. Until such time that the children commence spending time with the mother at Region B Contact Centre, the children shall spend time with the mother supervised by D Family Services:

   (a)Once per fortnight for a period of two hours and the father shall pay for these visits;

   (b)In addition to Order 9(a) and subject to the mother being in a position to pay, an additional visit in the intervening week at such times as nominated by the contact service.

   (c)All visits shall occur during the weekends only.

10. To facilitate time in accordance with Order 9, both parties shall:

    (a)contact D Family Services within 72 hours of the date of these Orders to arrange an intake and assessment for the children;

    (b)follow all reasonable directions of staff; and

    (c)in relation to Order 9(b) the mother shall notify the father of her capacity to afford said time, and the father shall do all things necessary to facilitate such time occurring.

11. Upon a position becoming available at the Region B Contact Service, if such time is to occur any less frequently than once every week, the mother is at liberty to arrange and pay for additional visits with the children, to occur supervised by D Family Services, at such times nominated by the agency. For the purposes of this Order:

    (a)the mother shall notify the father of her capacity to afford said time;

    (b)the mother shall bear the costs of the supervised time; and

    (c)where the mother is able to afford this supervised time, the parties shall do all acts and things necessary to implement such time.

12. If the children run away from the father to the mother, the mother is required by injunction to immediately notify the father by telephone or text and to do all things reasonably necessary and required to facilitate the immediate return of the children to the father.

13. The children’s time with the mother will be suspended during the time of the father’s holidays as set out below, if and only if, he and the children are not living at their usual residence and are away on holidays.

14. The parties do all things reasonable and necessary to obtain a mental health plan which facilitates attendance upon Dr E.

15. The parties do all things reasonable and necessary to engage in reportable Family Therapy with Dr E.

16. That leave be granted to the parties to provide a copy of these Orders and all other material in the proceedings to the office of Dr E.

17. Each party is hereby restrained from:

    (a)Denigrating the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the children and both the parties shall use their best endeavours to ensure that no third party denigrates the other party and/or any member of the other parties family or household to, or in the presence or hearing of, the children; and

    (b)Physically disciplining the children, or from smacking, hitting, pinching or pushing the children for any reason and both the parties shall use their best endeavours to ensure that no third party physically discipline the children.

18. Liberty is granted to the Independent Children's Lawyer to approach the Court in Chambers to have the matter relisted on short notice.

NOTES:

1. In order to give effect to these Orders, the father will collect the children from F School on 19 August 2020

2. The father will be on holidays during the following periods:

   (i)17-25 December 2020

   (ii)15-24 January 2021

   (iii)5-11 April 2021.

3. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Zabawa & Ragheb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7172 of 2014

MS ZABAWA

Applicant

And

MR RAGHEB

Respondent

REASONS FOR JUDGMENT

1. These are short form oral reasons for a decision, pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”), in an interim application for competing parenting orders made by two parents within Part VII of the Act.

2. The applicant on the Application in a Case before the Court is the father, Mr Ragheb born in 1989 (“the father”), who is a 31 year old tradesman, a role he has had for about five years.  The mother, Ms Zabawa born in 1993 (“the mother”), is 27 year old.  The parties married in 2011.  They had their first child, X in 2012 and she is now eight.  She appears to suffer, at the moment, from anxiety.  Their second child, Y, was born in 2013, he is now seven.  He has been diagnosed with ADHD.  The parties separated in about April of 2014.

3. The matter has a long and complex history, only part of which I will cover today.  The matter comes before the Court in circumstances where orders had been made for the children to live with the father but they have self-placed with the mother.  In the context of serious allegations of family violence and abuse of the children, the Court determined that it was most appropriate to leave them there until such time as additional material could be obtained.

4. That material having been obtained, and in particular material from the children’s school, the Department of Communities and Justice (“the DCJ”), and the NSW Police (“the Police”), together with a Child Inclusive Conference memorandum having been put before the Court, the Court is now considering the Application in a Case filed by the father on 20 May 2020, which in effect seeks the return of the children to live with him.

5. The competing proposals, in broad terms, in the father’s Application in a Case, although it is structured as a Recovery Order in the first instance, I would treat this a de novo consideration, is a question of where the children should live.  He seeks the children to live with him and that the mother have supervised time only with them in accordance with the Orders that were made on 19 February 2020, and that that time should be supervised on a professional basis, noted at no more than two hours per fortnight.  He also seeks other orders about communication.

6. On the other hand, the mother seeks Orders as set out in her amended proposed Interim Orders.  Again, she starts with the proposition that all parenting Orders be discharged and that the children live with her.  She says the children should spend time with the father under the supervision of the paternal grandmother, who I note has had considerable involvement in the children’s lives, each Sunday for a minimum of two hours or as otherwise agreed.  She also seeks restraints upon the father’s new wife, who he married in 2017, Ms G (“Ms G”), spending time with the children until certain things have been done including her giving an undertaking to the Court and certain reportable therapy occurring.

7. I will note that, for completion, the father and Ms G have two children, H who is just over one and a second child, who has just been born.  The father, Ms G and their two children live together.  I also note that, as I have said, the mother proposes that the paternal grandmother be the supervisor and, although she has made allegations against the paternal grandmother, it seems very clear that the paternal grandmother has had a large role in the children’s lives and has a close relationship with them.

8. The mother also proposes that there be reportable therapy either with the wellness centre where they have been seeking therapy or other such therapy as is agreed.  I will note at the moment that Dr E was proposed, and as I understand it, it would be mutually agreeable to the parties as the family therapist. Noting also, I was told by consent today, this matter having been heard yesterday and reserved that Dr E can take on the family and would treat them on a bulk billing basis if there is a mental health plan referral, which I understand there already is for the children, and otherwise it would seem to me that it should be possible to obtain such a referral.  Dr E would otherwise charge $130 per hour, but I note that the money is tight in this case.

9. The mother also made her own proposal that she be restrained by injunction from obtaining prescription analgesics other than from one of three medical centres, except in an emergency.  That comes to the question of whether or not the mother has a prescription pharmaceutical use problem, which I will deal with in due course.  Also the mother sought other consequential orders. 

10. At the heart of the case is the question of who the children should live with, and each party saying that the other parent should only have supervised time.

11. I will note that the Independent Children’s Lawyer (“ICL”) ultimately, in both the case outline, filed 14 August 2020, at page 1 stated that

    3. The ICL is more inclined for the children to live with the father and spend supervised time with the mother at the Contact Centre based on the evidence as filed and subpoenaed documents.

    4. The ICL is aware that irrespective of orders are made at the Interim Hearing, the children will suffer psychological damage.

12. Unfortunately, there is no doubt that this is the case.  The children have been drawn into a terrible conflict, and for reasons that I will go into, the children, no matter what happens today, are going to suffer from psychological difficulties or damage.

13. The ICL also noted at point 6:

    6. The ICL was unable to meet with the children prior to the Interim Hearing, but the ICL is also aware that the children have spoken with Family Consultant recently.

14. The ICL also noted that she was mindful that the family consultant was not privy to the subpoenaed documents or documents filed by each party in relation to these proceedings.  I also note that that appears to be the case, so that whilst I give much weight to what is in the Child Inclusive Conference memorandum, that has to be taken on the basis that the Family Consultant who produced the memorandum of the 27 July 2020, Ms J, had less material available to her than the Court does.

15. The overview of the position is that the mother says that the father and Ms G present an unacceptable risk of harm to the children because they have engaged in both physical and psychological abuse of the children. 

16. On the other hand, the father says that the mother is an unacceptable risk of harm to the children because she is lying to the children about what he and Ms G are doing, and that this is a form of psychological abuse.  He says that she has engaged, it appears, in prescription medication abuse.  He says there is educational neglect and also potentially exposure to instability and violence through her new partner and connections.

17. Those are the broad competing allegations. Before I move to consider the evidence in the case, I will just indicate the principles that bind me in making this decision. Both parties seek parenting Orders as defined in Part VII, division 5 of the Act. I note section 64B and the Court’s powers to make such Orders. The paramount consideration that must guide and bind this Court is what is in the best interests of these two children. I note sections 60CA and 65AA. The primary considerations when determining the best interests of the children are as set out in section 60CC. The primary considerations are in section 60CC(2).

18. First and foremost, this Court’s obligation is to make Orders that protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.  Secondly, to promote the benefit to the children of having a meaningful relationship with both parents.  Those are the twin pillars upon which this Court’s decision must be founded, as noted in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520. The legislation makes it clear that the protection of the children from physical or psychological harm must be given greater weight than promoting the benefit to the children of a meaningful relationship with both parents.

19. I note there are extensive additional considerations as set out in 60CC(3), however I also note that, as the Full Court said in Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 it is for the parties to define the relevant issues and to join those issues and to lead evidence relevant to them. The reality is that given the serious allegations made, the focus of the proceedings was quite properly on the primary considerations and those are what I will focus on.

20. I note what was said in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 about the process to be followed. I have identified the competing proposals and I will consider the issues in dispute in a moment. I will note that in this case there are few, if any, agreed or uncontested relevant facts. I note what the Full Court said at paragraph 81 of Goode & Goode about the fact that:

    81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

21. I also note that, whilst I will make a decision today, having deferred the hearing until evidence could be obtained, as the Full Court of the Family Court said in Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101, at paragraphs 120 and 122, especially that the interim hearing I have heard and the consequential Orders are:

    …a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.

22. A consequence of the very nature of the limited hearing that has occurred, is obviously we are not testing the evidence. A conservative approach must be adopted and any factual findings, if they are to be made at an interim hearing, should be “couched with great circumspection.”

23. Having said that, of course, as the Full Court said in Eaby & Speelman (2015) FLC 93-654 when considering Goode & Goode and disputed facts:

    … that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

24. With that in mind, I then note what the Full Court said in SS v AH [2010] FamCAFC 13 at paragraph 100:

    Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

25. In a similar vein, the Full Court in Deiter & Deiter [2011] FamCAFC 82 at paragraph 61 said:

    [61] The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements -- the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.

26. That is very much the situation in which I find myself, noting the contents of the parties’ competing Affidavits and Submissions. 

27. I will also note that, the parties having each raised unacceptable risk, I have in mind what was said in the High Court of Australia in 1988 in M v M (1988) 166 CLR 69, where the High Court said:

    In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

28. Now, I note that M v M was about sexual abuse, but the principles that have been set out there are what guide me.  And similarly, in considering that in a case of B & B [1993] FamCA 143; (1993) FLC 92-357, the Full Court said that the standard used

    by the Family Court ``to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access''

1. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm from the children having access with a parent outweighs the possible benefits to them from that access. 

2. Noting that both parties have said that although there is an unacceptable risk of unsupervised access, there should be ongoing time spent with the other parent, I note what was said in Stott & Holgar and Anor [2017] FamCAFC 152, where they considered the not extrajudicial statement of a former Judge, who looked at:

   …unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’

3. I note in this case, while each party says the other party is an unacceptable risk to the children of unsupervised time, they each say that there can be a balance achieved where the children can maintain a relationship with the other parent by the application of a safeguard by way of supervised time.

4. In the context of that background and those principles which bind me, I note that the parties have set out in their material the history of the conflict in the case. 

5. There were the unfortunate events of 2014, in which respect it seems both parties were subject to an AVO originally, although ultimately the AVO protecting the mother was not continued and the final AVO was protecting the father.  It also appears the mother may have been found guilty of maliciously damaging the father’s house.

6. I note that the parties commenced proceedings in 2014, and on 19 June 2015 Final Consent Orders were made, in effect saying: that the mother and the father would have shared parental responsibility; that the children would live with the mother; and spend time with the father each weekend.  The documents that were filed at that time did not raise, it appears on the mother’s part, family violence against the father.  Issues have arisen since then and I am concerned trying to cut through all the material to the more important ones.

7. It appears that in late 2017 the mother texted the father saying that the children wanted to live with him, and that from about 1 January 2018 it appears the children came into the fulltime care of the father.  Now, despite that fact, it appears that from late in 2018 the mother started making allegations that the father was abusing the children, I will come to the Police material about that in a moment as well as to the DCJ material, since I note that there is no possibility of reconciling the Affidavit evidence of the parties around these issues.

8. There is also agreement about certain Orders having been made.  It appears that the mother filed an Initiating Application on 16 May 2019.  On 17 July 2019 the parties entered into Consent Orders for the children to live with the father; to spend time with the mother one night per week; and additional time every second Sunday.  Then on 19 February 2020 the parties entered into further Consent Orders for the children to live with the father; spend time with the mother four nights per fortnight; half the school holidays; and on special occasions.

9. I note that those Consent Orders were being made at about the same time that the mother was still, it appears, making allegations of family violence to the Police and to the DCJ.  I will come back to material about that later. 

10. On 14 May 2020 the matter escalated, which is why it is now before me.  In effect, the children waited until Ms G was having a shower, and voted with their feet by going to their auntie’s place and then to their mothers.  The matter has then come before this Court and the Court, given that the children voted with their feet and given the serious allegations of family violence made, has allowed them to stay with the mother till now.

11. As I have indicated, that was on the basis that the Court would wait for additional material to be provided.  Now, the competing issues are very serious.  If the mother’s allegations are right, then the father and also, to some extent, Ms G have engaged in serious physical abuse of the children as well as serious psychological abuse of the children.  If those allegations were accepted, there is no doubt that they would constitute an unacceptable risk of harm to the children, and they should only spend supervised time with the children.

12. However, the father’s case is that the mother; has a prescription medication problem, is lacking in parental capacity and  unable to get the children to school, is living in circumstances where the children are subjected to violence by being with the mother when people are, for example, there pulling guns and engaged in that kind of behaviour. 

13. He says the mother has falsely accused the father of abuse and engaged the children in making those allegations, and that the extent to which the children are now making these allegations it is because they are either going along with the mother or, unfortunately, even worse, they may have come to believe, these false allegations to be true.  This is also a serious form of child abuse.

14. In that regard I note the discussion in Re David [1997] FamCA 48, (1997) 22 Fam LR 489, and also in the first instance case, about allegations of child abuse that impact on the children if the children come to believe it. Also the difficulty and care one must have in considering the weight to be given to the views of the children if there is a risk that the views the children are expressing are the result of being lied to. So, as I have said, this is a complex and serious case.

15. I note that the ICL’s position was that whilst she ultimately, having reviewed the material herself but not having spoken to the children, noting what was said in the Child Inclusive Conference, has supported the father’s application on balance.  She was very cautious to point out that, in effect, she was abiding by, or taking into account, the same issues that this Court is required to take into account. Those issues are the fact that: we have some evidence but it is limited; the children are young; there is some uncertainty about whether or not they are repeating what they have been told; and there are very serious allegations each way.

16. Now, I have looked carefully at the Police and DCJ material. In doing that, I do note that this is documentary evidence. Whilst I have no doubt the Police take care in preparing their material, it is certainly not unknown that on occasion when an officer is called to give evidence and it is compared against the Police COPS event references they will indicate that these are short summaries for their internal purposes, they are not always complete, and in these circumstances also it is not tested. I also note that sometimes the Police will express opinions in their event references, and whilst I will give some weight to those opinions, since the underlying basis for the section 78 Evidence Act 1995 (Cth) lay opinion evidence is not necessarily fully articulated, again one must be careful.

17. Having said that, I also have to do the best I can with the evidence I have to make Orders to protect the children as best I can in the meantime, given the unfortunate delays for final hearings.  I start on page 93 or 95 of the father’s court book, and note that on 10 October 2018 there is a reference to, as I understand it, the mother going to pick the children up, there being a verbal argument, and it states, I will not read the whole thing on to the record, that the  Police asked the child, who according to the victim is borderline autistic, who described the assault as:

    He (the POI) was helping me to put the shoes on and tapped the shoes on my feet.

18. The event entry goes on :

    Whilst at the scene, the victim also disclosed an incident from two weeks ago whereby the child2 was punished at the school for stealing and the POI held him against the wall to discipline him. When asked why she did not report the matter earlier, the victim stated, 'I first wanted to get to the bottom of it'. However when police spoke to the child 2 he did not disclose this incident at all. Police left and house and later spoke to the POI who denied assaulting the child 2. The POI however said he was upset at the child2 after receiving complaints from his school for stealing other children's money. Police were satisfied that an assault had not occurred and encouraged the parties to liaise with the Family Law Courts of New South Wales regarding custody.

19. Subject also to the question of circumstances in which the child is asked the questions, which is complex, there is a first event in late 2018 where the mother’s version of events about the first assault and the second assault do not seem to be supported by the children.  I also then note at page either 91 or 93, depending upon how the father’s court book is looked at, the event on 2 November 2018:

    …on Friday 2nd November 2018 VIC 1 and 2 were at the K Sports Centre with POI 1 and POI 2. PR stated that VIC 1 and 2 came home to her that night and told her about their day. During this discussion, the PR was told that the VIC's were practising floating on top of the water with POI 2. VIC 1 and 2 allegedly told the PR that they were pushed under the water for approximately a few seconds with both VIC's finding the top of the water. The PR stated that POI 1 asked POI 2 stop. The PR stated that her children have come home and mentioned a number of concerning things that have happened whilst at the POI's house. These have already been reported to police. The PR contacted POI 2 to ask why the pool incident occurred and POI 2 denied the extremities of what the PR was saying and mentioned that the VIC's were swimming as kids do in the pool. Police spoke with both VIC's and they didn't seem concerned and corrected the PR when telling the story to police about most recent incident. The PR told police originally that her children, the VIC's were drowned by POI 2, however upon further communication with the VIC's, it wasn't as extreme as the PR made it out to be. The VIC's were playing around in the pool and at times went under the water with and without POI 2 nearby. The PR also told police that she was at the police station to update the now expired AVO and wanted police to apply for another. When asked the reasons for this, the PR stated that as the previous one had expired she wanted to get another put in place. The PR didn't have anything to report against POI 1. There are on going issues with the conditions of family law court orders ( ...relates) where the PR was named as the POI in doesn't get a great deal of access to the VIC's. Police believe that the PR is collating police event numbers to assist her with family law court order to go more in her favour. Police also believe that the PR is embellishing incidents that occur between the POI's and the VIC's as police heard the PR put words into the VIC's mouths when talking to them in front of police.

    …

    Police sighted the children and spoke to the vic and wit in relation to the family law court orders. Police sighted the family law court orders which stated the above. Police checked the message history between one of the witnesses and the poi who all contact is made through to see if consent to see children was given by the vic however no consent was given. Police then looked for the poi who police were told may possibly be outside. Police could not find the poi so contacted her by phone. When police contacted the poi she was speaking to police from Suburb L PAC. Police from Suburb M spoke to Police from Suburb L on the phone. Suburb L police informed Suburb M police that the poi had shown them family court orders dating from 2015. Suburb M police then informed police from Suburb L that they had been shown family court orders that were made in June of 2018 that were more recent and that they stated the poi had access to the children between 7pm friday and 7pm saturday each week. Police then spoke to the poi again and informed her of this and that due to seeing these orders they would not be taking further action. Police also informed the poi that they do not have the power to remove children against a family law court.

20. Now, considering that material, I note that this involves an event where the mother said that the children had come and disclosed a number of things to her relating to events at a swimming pool.  I note, in particular, that when the Police spoke to the children, they did not seem concerned, and she even corrected her when telling the story to the Police about the most recent incident.  I note that the mother had told the Police originally that her children, the victims, were drowned by the person of interest, who as I understand it is Ms G. However upon further communication with the Police it was not as the mother made it out to be.

21. The children said they were playing around in the pool and at times went under the water, with and without Ms G nearby.  In that context, the mother also told the Police she wanted an AVO applied for.  Now, in that context, it is noted that:

    Police believe that the PR is collating police event numbers to assist her with family law court order

22. This is a very important event because the mother has maintained her allegations that the children told her that Ms G was trying to drown them and yet, contemporaneous to the time, it appears when the Police spoke with the children, and the children did not support that version of events.

23. Yet, when we come to the Child Inclusive Conference memorandum on 27 July 2020, when X is being asked questions, noting that she did not, and I will come to this later, make comments about the father abusing her.  It is reported that:

    •   X said that she does not want to return to live with her father because “Ms G was mean” to her and Y and that “she was very strict and scared them with a spiky belt”. She listed other issues including both that Ms G ate in front of them when they were hungry, and also that “she feeds us until we vomit”, and  that she tried to drown her once in the pool by holding her under the water for 30 seconds when she could only stay under the water for nine seconds.

24. It then goes on talk about other things that Ms G does.  That is very concerning to me.  We have a situation where the mother has told the Police that the children have disclosed drowning to her and makes a complaint to police, and it is a very serious thing.  If there was any suspicion that it was true that Ms G had tried to punish the children by effectively holding them under water, which is an extraordinary abuse of a child.

25. However, when the Police at the time spoke to the child, in particular, X, she gave a very different version of events:

    …playing around in the pool and at times went under the water with and without POI 2 nearby.

26. Now, the grave concern, which is the one the ICL raised, is that the mother has made an allegation and, at the time, the child has refuted it.  Now two years later, and particularly having been in the mother’s care since May, when X goes along to the Child Inclusive Conference and is interviewed, she says, yes “that she tried to drown her once in the pool by holding her under the water for 30 seconds”.  When that is something she would not agree to when spoken to by the Police at the time, I cannot make a finding, but that is strongly suggestive that there was no drowning incident, that she may have sucked down some water when she was not being watched, or there was some playing going on.

27. If X now, because of the mother’s coaching or speaking to her, genuinely believes that she was abused that is very concerning and does, in fact, as the ICL and the legal representative of the father said constitutes evidence of a form of child abuse. Whether it is intentional or not, and whether the mother has problems making her think that or not.

28. I also note the Police material on 30 April 2020, at page 77 or 79 of the father’s court book, where it appears, although I had some difficulty interpreting it, that the mother has been in a position where she has been the victim of a form of domestic violence, for which there is no suggestion she should be blamed.  However, if she is choosing to associate with people who are carrying guns and threatening her in the presence of the children, then that is a very unsafe environment.  Now, she has taken herself out of that environment, it appears, but that also would be a matter of concern.

29. Staying with the Police material, before we go to the DCJ material, we then come to the material about the circumstances in which, on about 14 May 2020, the children ran away from the father.  Now, the mother’s case is that the children are being abused by the father and Ms G and possibly by the paternal grandmother.  It is a bit unclear at times.  The father says the children ran away because the mother has been encouraging them to run away.

30. Now, I note the material, at pages either 76 or 78 of the father’s court book, which sets out the Police reference.  Now, I note that the mother says that the children have visible injuries, and yet the Police record that:

    Police sighted the children and they were fine. They had no injuries, no marks and no complaints of any pain. After speaking with the children they made no mention of any offences being committed. The children stated that they did not want to stay with their father because the night before they were told to go to bed early for misbehaving.

31. I note again that the police perception and opinion must be taken with some caution, but nevertheless, the view they formed was that:

    Based on the history between the mother and the father Police strongly believe that this is a matter that is revolving around the custody of the children.  Both the mother and the father have made multiple allegations between each other.  Police are of the belief that future calls will be made where either one party will make allegations.  As no offence has been committed and the police sighted to (sic) the children with nil issue no further police action required.

32. Despite all of the disclosures the mother is saying the Police when they spoke to the children made, and noting that this is not a JIRT enquiry and I do not know how skilled the police were in their questioning of the children or what state the children were in and that always has to be kept in mind, but the reason the children gave was that they left the father because “they were told to go to bed early for misbehaving”.

33. Again, when one comes to the Child Inclusive Conference memorandum and looks at what the children say, they do not express, particularly in respect to the father, the kind of sentiments that even such young children might have been expected to disclose if they had been subjected to the kind of abuse alleged.  When X,  noting that she is the older child, also that she is the one who thought this out and Y goes along with her, when asked why she would not want to return to live with her father:

    She listed a number of reasons including that it is “fun” living with Mum, and that she is very nice”, she lets us stay up until 8.30pm and she described her mother as being “kind , loving and helpful and [that] she is very, very tidy”.

34. Now, so we have got on the one hand a mother who, perhaps, is not particularly strict and in that regard, I will note the school material, and suffice to say that school attendance in the mother’s care is very poor.  I note that the Exhibit D material was not easy to interpret, but it was not contended by the mother that the school attendance was other than poor.  I note, even taking into account COVID-19, whilst there is some explanations for some things, looking at the school attendance, the mother clearly has difficulties getting the children to school.  I also note that there is an issue about whether she is having trouble waking up to be able to get them to school.  I note the father’s court book in respect of 25 June 2020, and I think that is page 5.

1. There are concerns that perhaps one of the reasons the children do not want to live with the father is because he and Ms G are imposing reasonable requirements that they go to school and that they go to bed, and that Mum is the fun mum, which is why they want to live with her.  I will note also in respect of these abuse allegations that there is no suggestion the children do not love the father, and although it has been said Ms G was mean, noting that the father is working and that Ms G has been, in effect, the person required to apply parental discipline, it appears, X described the father to the Family Consultant as being:

   …“nice, kind and loving and that he always cleans the house when he gets home from work. She said that she is missing her father and the baby”…

2. Now, one thing she says is that she is worried that Ms G will ask her questions and be angry with her running away.  The child just does not make the current disclosures of the serious family violence that the mother is talking about, nor does Y.  Now, Y says:

   …that he did not really get along with Ms G, but that holidays with his father and Ms G were good…

3. Y said to the Family Consultant that:

   …he loves his father and misses seeing him and is happy to see his father and grandmother each time. He said that he does not want to go overnight to his father and Ms G.

4. This, again, comes back to this question; that we have at the time in 2018 the mother saying Ms G tried to drown X.  We have the Police asking X and her not supporting that allegation.  We have then in this year, July 2020, X effectively adopting the mother’s allegation that Ms G tried to drown her and both children saying they are scared of her.  It is concerning, and one has to be concerned when one looks at that change in respect of a particular event over time of the history given by the child when independently assessed from first disputing what the mother said to then adopting it.

5. I will also note, again, that it is significant that in the quote I referred to earlier in respect of 2 November 2018, the Police concluded by saying:

   Police also believe that the PR is embellishing incidents that occur between the POI's and the VIC's as police heard the PR put words into the VIC's mouths when talking to them in front of police.

6. Not only do we have the potential inference that the change of version is from the mother, but it is clear that the Police say that the mother was seeking to influence the children in a version of events they gave even when talking to the Police.  Although, again, I cannot make a finding but that is strongly supportive of the case that the children’s fear of Ms G, in particular and to the extent to which they have expressed it is influenced.

7. Although, in talking to the independent Family Therapist, they did not appear to accept they had any concern about the father or not want to be with the father, it may be that they have been, in effect, I will use the word “brainwashed”, because that is the essence of what is said to be going on here.  Again, even when they ran away, the mother says it was because of abuse, but that is not what the children told the Police at the time.

8. I then come to the DCJ material, and I will note that they record very significant allegations, but on 27 November 2018 where it looks like they have become involved again, beginning on page 63 or 65 and continuing on 64 or 66 of the father’s court book, it is noted that the children have not disclosed abuse or neglect:

   - children look comfortable with the stepmother

9. The mother is making these allegations of abuse.  I do note that it was concerning to me that, at pages 47 or 49 of the father’s court book, it says:

   The father has made videos of the children making statements - questioning the children.

10. If he has unfortunately formed the view that the way to counter the mother is by questioning the children or dragging them into a dispute between the parties, then he clearly was not being well advised at the time or I suspect he was not being advised, because that is just compounding the issue. 

11. Again, noting that it is a question for me, and the opinions expressed by the officers of the DCJ have not been tested, I have their notes, but it is not entirely clear what the foundation for their opinions are, to the extent to which they may be necessary to explain their views.  Indeed, they may be experts; I am not sure.  But for present purposes, I note that after some time, I note that on page 42 or 44 that, on 25 May 2020, it was noted that:

    The school does not report any concerns for the children in the stepmother and father’s care.

12. There is an independent source there, on page 41 or 43, on 19 May 2020, it was recorded that certain officers:

    …have reviewed the reported information and the Child Story/KiDS history for the family and recommend the engagement be closed. Decision made the level risk does not indicate further assessment or support is required.

    "The school reports step mother is amazing, she is very caring, when the step mother has come to the school for meeting, children are not afraid they hug her, children have never spoken negatively about step mother, principal stated they love her. The school does not report any concerns for the children int he(sic) step mother and father's care.

13. Again, outside of the formal process, we have the school, who are dealing with the children and dealing with the family, reporting their view not only of the stepmother, in case there is a suggestion that she may be feigning being a nice person when she is at school but not otherwise, but significantly, the children’s natural response to the stepmother in other contexts as observed by the school, presumably over time, is that they are not afraid of the stepmother and they hug her.  They have never spoken negatively about her, and they state they love her.

14. That is an independent, longitudinal summary of what the people who see the children every day think or perceive of the relationship between the children and the stepmother.  Again, that is another little piece of evidence, which I think, does support the father’s case.  Again, I will note, at page 35 or 37, on 2 May 2020 the concerns about family violence from other people.  I will note, on the same page, on 15 July 2019:

    Concerns have been raised as mother reportedly provides misleading information to the children against the father, cries and manipulates situation to convince children and instructs them to make false reports to the school.

15. Now, I am not sure whether that is just them reporting the father’s view or if that is a view they reported.  I will also note that it is said that, on 6 May 2020, on the same page, again, it is not always clear who has reported, but the allegation about Ms G effectively holding X under water is reported again along with other allegations.

16. Now, the other allegations, it is hard to know, but we do know that the contemporaneous statements by the children about whether Ms G tried to drown X or not do not support this, and yet these allegations continue to be made.  I note that that is the material.  Before I consider that further, I note that, as I have said, the children’s school attendance while with the mother has been very poor.  She has clearly had difficulty getting them to school.

17. I note the mother has given evidence that she started having back pain in 2015 and was diagnosed with a disc prolapse in 2017, had gastric banding in 2017 with symptoms of pain.  She aggravated her disc prolapse in 2018 when she slipped and landed on her tailbone, and in December 2019, she was placed on a waiting list for N Pain Clinic.  Now, I will not seek to draw any adverse inferences from the fact that she is waiting to go to a pain clinic other than she has very severe pain.

18. In respect of the material, it is quite clear that the mother is using prescription drugs.  At page 5 or 7 of the father’s court book, there is a picture of an OxyContin or Oxycodone tablet which he says he found in one of the children’s pockets.  I think the mother suggested that the father might have put it there, but it is not clear where he would have gotten it from.

19. Of real concern to me is the fact that the mother got prescriptions for Oxycodone on both 23 April and 24 April 2020, she says, from different practitioners.  She says she lost the first prescription, but it is not clear then why she did not go back to the same practitioner and explain that she had lost that prescription.  Nor is it clear why she, in her proposed Orders, says she should be able to go to three different general practitioners to get her Oxycodone. 

20. There is no suggestion that these medical practices are open early sometimes or other times, as I understand it.  When someone says, “I need to have three different GPs who can prescribe Oxycodone,”; and those GPs are not linked in one practice; and do not share data; and where someone is having trouble occasionally waking up, it appears, to get the kids to school; and where that person is waiting to go to a pain clinic; and where you are getting two lots of Oxycodone in sequential days, then, whilst I cannot make a finding, I note that that does give rise to a concern that the mother may be abusing prescription drugs.

21. As I have already indicated, the material about the mother which is set out in the father’s case and the Police notes, which I have referred to, about the events which appear to relate to the mother’s brother-in-law, and it appears that she has been threatened by a gun by people she associates with.  On one of these occasions, a child may have been present.  Now, there is no moral difficulty being a victim of a threat, but if you choose to continue associating with the kind of people who deal with issues by pulling out guns and threatening you, well, then when one looks to whether or not that poses a problem for the children as a risk, I think it does.

22. The mother, clearly, has had issues with her financial capacity.  She told the school she could not afford to buy school uniforms even though she agreed that she would.  I note that she has had to change residence, it appears, as a result of these other events.  Presumably, she is not associating with these people any more, and I do not have any evidence that she is.  But the father also relies upon that.

23. Now, I note the mother’s version of events.  I have not gone in detail, but I have read the father’s and the mother’s affidavits, that they are irreconcilable, and it seems to me that I am better placed by relying upon the history set out in the Police material and the DCJ material and considering, also, what was in the Child Inclusive Conference memorandum.  It is in that context of the material I have referred to from the Police and DCJ, I think the ICL was quite right to raise that the Family Consultant who did the Child Inclusive Conference did not have that material and was not in a position to weigh it when looking at the appropriate way forward.

24. Now, I cannot make findings.  There is certainly not enough evidence to make any findings either way.  All I can do is consider the material that I have just referred to and,  as was said in SS & AH:

    …weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

25. Now, if the mother’s allegations are correct, then the children certainly cannot spend time unsupervised with the father and Ms G.  Noting that she makes allegations that are denied. But weighing the contemporaneous evidence of the Police discussions with the children particularly in respect of this allegation of the drowning, and noting that the Police said they saw the mother putting words into the children’s mouths, and considering that the alternative, which is that the mother is trying to convince the children they have been abused when they have not been, is having some success. Noting that I cannot possibly make a finding but that at the moment, I am satisfied on the evidence I have, that the probabilities tend to favour the father’s case that, in fact, whatever is occurring, the allegations of abuse the mother is making cannot be substantiated. The mother does appear to be trying to convince the children to make complaints, and that she is making complaints to the Police in order to sustain her case.

26. They seem to me to be the probabilities at the moment.  I am also satisfied that there is a genuine concern about the mother’s use of Oxycodone.  I note that one of the reasons people often go to a pain clinic is because of difficulties managing pain and, in particular, difficulties managing their medication used around pain.  That is a concern.  I also note the mother’s involvement with people who are placing the children at undoubted risk of harm if guns are being drawn and waved around in their presence, and that there seem to be issues with her financial capacity.

27. I also note that, as I have said, I am not sure quite what to make of it, but it appears that it is said that footage of one assault of the mother’s father, which included a gun threat, was recorded by the mother and placed on Facebook.  I understand that the offender may have been arrested.  In any event, as I have said, it is not appropriate to blame the victim for being the victim of an assault.  But if one chooses to associate on an ongoing basis with people who act like that, then that is a risk.  That is not my main reasoning.

28. On balance, doing the best I can, I think that the evidence before me tends to, on the principal question, weigh in favour of the likelihood that the children are not being abused by the father or Ms G. That to the extent to which they have expressed unhappiness, that has been a consequence of two things:  (1) a comparison of the fact that they are living in a household where they are expected to go to bed and go to school and comply with rules as opposed to a household where they can stay up if they want to and not go to school if they do not want to; and (2) the mother putting words in their mouths and trying to convince them that there is violence there when there is not.

29. I note, as the ICL said, that this is very difficult because, obviously, there is a risk either way.  If the Court is wrong and the children are left or put with the father, which I propose to do, and they are, in fact, being abused, well, then that is a horrendous result.  Equally so if they are left with the mother and she is intentionally telling them that they were abused when they were not in seeking to deprive them of a relationship with their father, his new partner and their children, maliciously for the purpose of these proceedings. Telling a child that they have been abused and convincing them they have been abused when they were not is itself also a terrible form of child abuse.  There is no doubt about that fact.

30. As I have said, all I can do is weigh the probabilities of the competing claims and the likely impact on the children, noting all the material I have referred to, including the school material, Police and DCJ material.  Also, I do note what was said at the O Clinic, but I prefer the independent material.  I do not consider the O Wellness material to necessarily be independent, and I say that without any intention to impugn the people who are there.  The circumstances in which the children are attending may mean that what is happening there, in effect, is subject to the mother’s influence and control, and what they say there may be subject to that as well.

31. In those circumstances, for those reasons, I propose to make Orders that the children live with the father and spend supervised time with the mother.  The Orders as structured by the father in his Application in a Case concern me. I do not propose to make a Recovery Order at the moment.  I will give the mother the opportunity to comply with Court Orders, noting the issues that will arise if she does not and noting that if the children run away again, she will be required to hand them back over again.  That will need to continue until the children understand that they are to comply with Court Orders.

32. If it comes to it, the ICL and the father can come back, and I will make a Recovery Order if I have to.  That is not my preference.  I note that it is agreed that there should be supervised time with the mother.  I think it has to be supervised because if the mother is going to continue, as I find the likelihood, telling the children that they have been abused and trying to encourage them to run away, that is a terrible thing for the children.  That can only be stopped by professional supervision.  I do not think there is a non-professional supervisor who is going to be appropriate, and I note what was said in B & B in 1993 and what was said to me.

33. I think in terms of payment, I am concerned.  I did not hear a lot of addresses on that question.  I am very concerned that the mother’s financial circumstances will mean that she cannot afford it, and this is not about what is good for the mother  this is about what is good for the children.  I think to have no time whatsoever is going to be very problematic, and I think if the mother cannot afford it and the father is working, I know he has got two other children, and he will have these two children and no support, but I think that the father needs to be willing to contribute, and I will hear, before the entry of Orders, submissions on that, if necessary.

34. I also think that it would be better for the children to be in Family Therapy and seeing an independent psychologist, particularly, in the circumstances where the psychologist has arisen.  I think Dr E would be a good option because I have been told she can do it, effectively, on a bulk-billing basis if there is a mental health plan, which I think there already is.  If a new one is needed, the parties should do what is required to get that mental health plan, and then that would be the best way forward.

35. Also, I am concerned about the particular formulation of the Orders, I understand why the father’s Application in a Case was formulated that way at the time but I am not sure it is sufficient for what we are doing now. I will just indicate the Orders I am going to make in summary are as follows.

36. I would like the children to see the mother as often as possible.  The mother’s proposal for the father was every second week for two hours.  It would be good if it could be every week, but there may be a question of costs, and I will hear the parties on that.  There will be professional supervision, and I will also hear the parties on who is going to pay for it, because, again, as I have said, I would be very concerned if the consequence of the Order is that the children do not see the mother because she cannot afford to. 

37. The mother proposed certain Orders about restraining herself by injunction from getting analgesic medication.  I do not know that that is appropriate now, given the Orders I am making.  Obviously, if she has an issue with prescription drugs, which the evidence suggests she may well have, she will need to address that before she is going to be able to have unsupervised time with the children apart from other matters. 

38. Again, I was not addressed on all the consequential Orders that people were talking about.  I will hear the parties on consequential Orders now. 

39. Those are my reasons and I make Orders in accordance with them.

40. I will just note that the father or Ms G will pick up the children from school tomorrow and that will be the handover pursuant to my Orders.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate: 

Date: 9 September 2020